The public contracts regulations implement the European
Commission's consolidated Directive (which was adopted in March
2004) into UK law and bring together three old separate regulations
for works, supplies and services into a single text.
The utilities contracts regulations are also updated in line
with a parallel utilities directive. According to Pinsent Masons,
the law firm behind OUT-LAW.COM, contracting authorities and
utilities should broadly welcome this legislative change which
seeks to consolidate, clarify and modernise public procurement
practices.
Jill Marsal, an Associate in the firm's Public Procurement
Group, recommends that contracting authorities and utilities take a
good look at the new regulations. "Now is the time for them to put
their houses in order," she said.
"Private sector bidders will be able to challenge wrongful award
decisions more easily from now on with the express introduction of
a standstill period in the regulations," she continued.
"Contracting authorities and utilities should therefore grasp this
opportunity to give their purchasing procedures a health check and
to adapt them to the detailed requirements of the EU rules."
Whereas utilities were expressly subject to rules on framework
contracts under the old regulations, public sector contracting
authorities were not. The rules applying to contracting
authorities' framework contracts have now been expressly set out
for the first time and in so doing have become stricter:
frameworks must now not generally exceed a term of four
years and their terms must be determined at the
outset.
The new Regulations also set out new standstill and debriefing
obligations for contracting authorities. The purpose of these
changes is to allow an aggrieved bidder a reasonable chance
to consider its situation, and, where relevant, to bring
an action against the contracting authority before it concludes the
contract.
In line with the aim of modernisation, the new Regulations place
more emphasis on the use of e-procurement. For example, contracting
authorities can now benefit from shorter time-scales when
sending contract notices electronically, and can also
detail their own procurement activities on a website known as a
"buyer profile". Two new electronic purchasing tools are also now
regulated, namely, dynamic purchasing systems (DPS) and electronic
auctions.
The Regulations also introduce a new procedure known as the
"complex dialogue". Although it is only available in limited
circumstances for the procurement of "particularly complex"
contracts, this procedure has the advantage of allowing contracting
authorities to benefit from the input of those participating in the
tender process.
The Public Contracts Regulations 2006 apply to
contracting authorities in England, Wales and Northern Ireland,
while separate and similar rules apply to contracting authorities
based in Scotland, the Public Contracts (Scotland) Regulations 2006
(also in force today).
The Utilities Contracts Regulations 2006 apply
to utilities in England, Wales and Northern Ireland, while the
Utilities Contracts (Scotland) Regulations 2006 apply to utilities
in Scotland.
